TERMS AND CONDITIONS
Interpretation. These Terms and Conditions are a part of that certain Wurx Nutrition Sponsored Business Agreement between Sponsored Business and the Company (the “Agreement”), and all capitalized terms used but not defined herein shall have the meanings ascribed to such terms elsewhere in the Agreement, including without limitation the Policies and Procedures and the Commission Plan. The Agreement shall become effective upon acceptance by the Company. The Company may reject the Agreement without disclosing any reason therefore.
Representations of the Company; Covenant. The Company represents and warrants that (i) the Company has the power and authority to enter into this Agreement, (ii) it is not a party to any agreement or subject to any law that restricts the Company’s performance of the Company’s obligations hereunder, and (iii) the Company possess all legal authorizations, permits and licenses necessary for the conduct of the Company’s obligations hereunder. The Company covenants and agrees to comply with all laws, regulations and codes applicable to the Company’s duties and obligations hereunder.
Representations of Sponsored Business; Covenant. Sponsored Business represents and warrants that (i) he or she has the power and authority to enter into this Agreement, (ii) he or she is not a party to any agreement or subject to any law that restricts Sponsored Business’s performance of Sponsored Business’s obligations hereunder, and (iii) Sponsored Business possesses all legal authorizations, permits and licenses necessary for the conduct of Sponsored Business’s obligations hereunder. Sponsored Business covenants and agrees to market, promote and sell the Products in compliance with all laws, regulations and codes applicable to Sponsored Business’s duties and obligations hereunder.
Appointment; Limited License. Upon acceptance of this Agreement by the Company, Sponsored Business shall be appointed as a Sponsored Business of the Company, and shall have the right to purchase and promote the Products pursuant to the terms and conditions hereof. Subject to the terms and conditions hereof, Sponsored Business shall have the limited license and right to use the Company’s trademarks and trade names for the purpose of promoting and selling Products and performing Sponsored Business’s obligations hereunder, all in accordance with the Policies and Procedures. In no event shall Sponsored Business have or be granted any ownership in any of the Company’s intellectual property.
Products; No Minimum Purchase Requirement. The Company has developed and may in the future develop certain nutritional products available for sale by Sponsored Business (the “Products”). As a Sponsored Business, Sponsored Business is authorized to purchase Products pursuant to the terms and conditions of this Agreement. The Company shall, in its sole discretion, determine the sales price and terms of sale for the Products. Sponsored Business is not required to meet minimum purchase requirements to maintain Sponsored Business’s status as a Sponsored Business hereunder. Sponsored Business may buy at a discounted rate and resell any Products purchased directly to there consumers, but its highly recommended to refer potential customers to make purchases directly from the Company using Sponsored Business’s Team Wurx ID.
Promotion of Products; Products Warranty. Sponsored Business understands and agrees that the Company has expended considerable time and resources conducting testing of the Products and preparing official literature regarding the composition and performance of the Products. Sponsored Business agrees to present the Products in a manner consistent with the official literature of the Company. In no event shall Sponsored Business make any representations or warranties about the Products not contained in the official literature of the Company. Sponsored Business shall conduct all marketing activities in compliance with the Policies and Procedures. Sponsored Business will indemnify and defend the Company against any third party claims asserted against the Company related to Product representations made by Sponsored Business that are not contained in the Company’s official literature. The only warranty provided by the Company related to the Products shall be the written warranty included with shipment thereof, and any other warranties are expressly disclaimed.
Commissions. Sponsored Business shall be entitled to discounts for Sponsored Business’s purchases of Products, and Sponsored Business may earn commissions on purchases of Products by parties referred to the Company by Sponsored Business. To be eligible to receive payment of any commissions earned, Sponsored Business must be in good standing at the time of any applicable payment.
Term and Termination. The term of this Agreement is at will, and may be terminated upon 30 days notice by the Company to the Sponsored Business. It is not requisite that the Sponsored Business submits formal written notice to terminate the agreement, as no formal activity is required. In the event of a breach of either party’s obligations hereunder, the other party may terminate this Agreement immediatel In the event of cancellation or termination by the Sponsored Business for any reason or by the Company for a breach by Sponsored Business, Sponsored Business shall waive all rights he or she have hereunder, including but not limited to any rights to commissions otherwise earned prior to the applicable payment date. For the avoidance of doubt, the Company may terminate this Agreement and all other agreements between the Company and other Sponsored Businesss if the Company elects to cease business operations, dissolve the Company or terminate its business. Upon the termination of this Agreement, all limited licenses granted to Sponsored Business hereunder shall cease and Sponsored Business shall cease to hold himself or herself out as Sponsored Business of the Company. All covenants set forth herein that by their terms survive the termination of this Agreement shall survive such termination.
Relationship of the Parties. Nothing herein shall be construed to create a joint venture or partnership between the parties or an employer/employee, franchisor/franchisee or agency relationship. Sponsored Business is an independent contractor and shall determine the method, details, and means of conducting the business of Sponsored Business. There are no minimum requirements for time commitment. Sponsored Business agrees that Sponsored Business will be solely responsible for paying all expenses incurred by Sponsored Business, including but not limited to travel, food, lodging, secretarial, office, long distance telephone and other expenses. SPONSORED BUSINESS UNDERSTANDS THAT SPONSORED BUSINESS SHALL NOT BE TREATED AS AN EMPLOYEE OF THE COMPANY FOR FEDERAL OR STATE TAX PURPOSES. The Company is not responsible for withholding, and shall not withhold or deduct from my commissions, if any, FICA, or taxes of any kind.
Confidentiality. Sponsored Business acknowledges and agrees that this Agreement is confidential, and may not be disclosed to third parties without the Company’s consent. In addition, in the course of Sponsored Business’s relationship with the Company, Sponsored Business may receive confidential information regarding the Products and/or the business and affairs of the Company which is not generally known or made available to the public and is treated as confidential by the Company (the “Confidential Information”). Sponsored Business agrees not to use the Confidential Information for any purpose other than the performance of Sponsored Business’s obligations hereunder and agrees not to disclose the Confidential Information to any third parties without the prior written consent of the Company.
Assignment. Sponsored Business may not assign any rights or delegate its duties under this Agreement without the prior written consent of the Company. Any attempt to transfer or assign Sponsored Business’s rights or duties under this Agreement without the express written consent of the Company renders the Agreement voidable at the option of the Company and may result in termination of this Agreement. The Company may assign its rights and delegate its duties hereunder to any third party acquirer of the business of the Company, and following such an assignment and delegation; the Company shall have no further duties or obligations hereunder.
Remedies. Sponsored Business understands that if he or she fails to comply with the terms of the Agreement, the Company may, at its discretion, impose disciplinary action as set forth in the Policies and Procedures.
No Consequential Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY OR ITS REPRESENTATIVES OR AFFILIATES BE LIABLE UNDER THIS AGREEMENT TO SPONSORED BUSINESS OR ANY THIRD PARTY CLAIMING THROUGH SPONSORED BUSINESS FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT SPONSORED BUSINESS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
Limitation of Damages. IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED 80% OF THE TOTAL OF THE AMOUNTS PAID TO SPONSORED BUSINESS PURSUANT TO THIS AGREEMENT IN THE 1-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Indemnification. Sponsored Business (as “Indemnifying Party”) shall indemnify, hold harmless, and defend the Company and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, that are incurred by Indemnified Party, arising out of any third-party claim alleging a breach by Sponsored Business of the terms of this Agreement, any negligent or more culpable act or omission of Indemnifying Party, any bodily injury, death or damage to real property caused by the negligent or more culpable acts or omissions of Indemnifying Party, any failure of Indemnifying Party to comply with all applicable federal, state or local laws, regulations or codes.
Entire Agreement. This Agreement, in its current form and as amended by the Company at its discretion, constitutes the entire contract between the Company and Sponsored Business. Any promises, representations, offers, or other communications not expressly set forth in the Agreement are of no force or effect.
Waiver. Any waiver by the Company of any breach of the Agreement must be in writing and signed by an authorized officer of the Company. Waiver by the Company of any breach of the Agreement by Sponsored Business shall not operate or be construed as a waiver of any subsequent breach.
Severability. If any provision of the Agreement is held to be invalid or unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable and the balance of the Agreement will remain in full force and effect.
Governing Law; Binding Arbitration. This Agreement will be governed by and construed in accordance with the laws of the State of Utah without regard to principles of conflicts of laws. All disputes and claims relating to this Agreement, including the Commission Plan, the Products, the Company, or any other claims or causes of action relating thereto shall be settled totally and finally by binding arbitration in Salt Lake City, Utah, and shall be administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (the “Commercial Rules”). There shall be one arbitrator agreed to by the parties within twenty (20) days of receipt by respondent of the request for arbitration or in default thereof appointed by the AAA in accordance with its Commercial Rules. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. The award rendered by the arbitrator shall be final and binding on the parties and may be entered and enforced in any court having jurisdiction, and any court where a party or its assets is located (to whose jurisdiction the parties consent for the purposes of enforcing the award). Judgment on the award shall be final and non-appealable. Each party shall be responsible for its own costs and expenses of arbitration, including legal and filing fees. This agreement to arbitrate shall survive any termination or expiration of the Agreement. Nothing in the Agreement shall prevent the Company from applying to and obtaining from any court having jurisdiction a writ of attachment, garnishment, temporary injunction, preliminary injunction, permanent injunction or other equitable relief available to safeguard and protect its interest prior to, during or following the filing of any arbitration or other proceeding or pending the rendition of a decision or award in connection with any arbitration or other proceeding.
Statute of Limitations. To the extent permitted by applicable law, any action arising under this Agreement must be brought within 1 year from the date of the alleged conduct giving rise to the cause of action. Failure to bring such action within such time shall bar all claims against the Company for such act or omission. Sponsored Business waives all claims that any other statutes of limitation apply.
Authorization. Sponsored Business authorizes the Company to use his or her name, photograph, personal story and/or likeness in advertising or promotional materials and waive all claims for remuneration for such use.
Counterparts. This Agreement may be executed in one or more counterparts, each of which is an original, and all of which together constitute only one agreement between the parties. Delivery of an executed counterpart signature page of this Agreement by facsimile, portable document format (.pdf), electronic mail, or any other electronic means intended to preserve the original graphic has the same effect as delivery of an executed original of this Agreement.
Survival. Any provision of the Agreement which, by its terms, is intended to survive termination or expiration of the Agreement shall so survive, including, without limitation, the arbitration, non-competition, non-solicitation, trade secrets and confidential information covenants contained in the Agreement.
Territory. Sponsored Business will sell and promote the Products in the geographic location of Sponsored Business’s choosing. Sponsored Business understands and agrees that the Company may appoint other Sponsored Businesss within the geographic location where Sponsored Business promotes Products, and nothing herein grants Sponsored Business the exclusive right to promote Products within any geographic area.
Products Return Policy. The Company stands behind the Products and will provide a refund for unopened and in resalable condition Products to the purchasing customer who purchased products at www.wurxnutrition.com in accordance with the Policies and Procedures:
- 30 day 100% refund of purchase price of the Product.
- 12 month 90% refund after deducting an administrative fee equivalent to 10% of the purchase price of the Product.
All returned Products must be unopened and in resalable condition.
Credit Card Purchases. Sponsored Business agrees that it is against the Policies and Procedures to use another individual’s credit card without the individual’s prior written approval, and Sponsored Business must provide a copy of such written approval upon request from the Company.
Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement.
Attorneys’ Fees. In the event that any party institutes any legal suit, action, or proceeding, including arbitration, against the other party arising out of or relating to this Agreement, the prevailing party in the suit, action or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action, or proceeding, including actual attorneys’ fees and expenses and court costs
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and assigns nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
POLICIES AND PROCEDURES
The Company’s current Policies and Procedures are available at WWW.MYTEAMWURX.COM. The Company’s Policies and Procedures are a part of Wurx Nutrition Sponsored Business Agreement between Sponsored Business and the Company (the “Agreement”).
Section 1. Code of Ethics
Wurx Nutrition expects and requires its independent Sponsored Businesss to conduct themselves in accordance with the highest standards of ethical behavior. Sponsored Businesss are expected to practice the following ethical behavior when introducing people to, and representing the Company and its products. Violations of the Code of Ethics may subject the Sponsored Business to disciplinary action by the Company depending on the materiality of the violation. The following guidelines help ensure a uniform standard of excellence throughout the Wurx Nutrition organization. All Sponsored Businesss should:
A. Be respectful of every person while conducting Wurx Nutrition related business.
B. Conduct themselves and their business activities in an ethical, moral, legal and financially honest manner. Sponsored Businesss should not engage in activities and behavior that would bring disrespect or embarrassment to Wurx Nutrition, its corporate officers, employees, themselves, or other Sponsored Businesss.
C. Refrain from making negative or disparaging statements about other companies, their employees, or their products.
D. Refrain from making negative or disparaging statements about other Wurx Nutrition Sponsored Businesss.
E. Be truthful in representations of Wurx Nutrition products. Do not make diagnostic, therapeutic, curative or exaggerated claims.
F. Give support and encouragement to customers to ensure that their experience with Wurx Nutrition is meaningful and rewarding.
G. Accurately teach and represent the Wurx Nutrition Commission Plan. Make no claims related to past, present, or future earnings. The Sponsored Business should not use their own income as an indication of other’s potential success, or use compensation checks as marketing materials.
H. Abide by all of Wurx Nutrition policies and procedures as they are currently found in the Policies and Procedures and the other Contract documents, and as they may be amended in the future
Section 2. Purchasing Products
A. No Requirement to Purchase Products.
A Business is not required to purchase any product in order to be a Wurx Nutrition Sponsored Business.
B. Reselling of Wurx Nutrition Products.
Sponsored Businesss are not permitted to purchase Wurx Nutrition products for resale.
C. Credit Card Use.
Sponsored Businesss are strongly discouraged from using their own credit cards to purchase products for another Sponsored Business or Customer. Sponsored Businesss are prohibited from using their own credit cards to purchase products for another Sponsored Business who has been a Sponsored Business for less than 30 days. Sponsored Businesss may not place a product order using someone else’s credit card without the credit card owner’s written permission. In those rare circumstances where it is necessary to purchase product for another Sponsored Business, the Company must receive written permission from the Sponsored Business for whom the product order is being placed. Failure to produce such permission upon request of the Company may result in cancellation of the sale, forfeiture of commissions resulting from the sale, and other disciplinary action.
D. Repackaging Prohibited.
Sponsored Businesss may not print their own labels or repackage Wurx Nutrition products. Products are to be sold in their original packaging only. For instance, Sponsored Businesss may not resell individual parts of a product separately from the original product packaging.
Section 3. Product Return Policy
A. Returns on Products Within 30 Days.
1. Wurx Nutrition will refund one hundred percent (100%) of the purchase price (plus applicable tax if prepaid) of Currently Marketable products that are returned by a Customer within thirty (30) days of purchase from the Company’s website WWW.WURXNUTRITION.COM, less shipping costs and paid Bonuses.
2. Wurx Nutrition will refund ninety percent (90%) of the purchase price (plus applicable tax if prepaid) of Currently Marketable products that are returned by a Customer within twelve (12) months of the from the purchase from the Company’s website WWW.WURXNUTRITION.COM, less shipping costs and paid Commissions
B. Currently Marketable.
Products shall be deemed currently marketable if each of the following elements is satisfied: 1) they are unopened and unused; 2) packaging and labeling have not been altered or damaged including shrink wrap and/or tamper evident label; 3) the product and packaging are in a condition such that it is a commercially reasonable practice within the trade to sell the merchandise at full price; 4) the product expiration date has not elapsed; and 5) the product contains current Wurx Nutrition labeling. Products shall not be considered Currently Marketable if the Company discloses prior to purchase that the products are seasonal, discontinued, limited time offers, or special promotion products not subject to the Return Policy.
C. Return of Damaged or Incorrectly Sent Products.
Wurx Nutrition will exchange products if the returned products were received by the purchaser in damaged condition or were incorrectly sent. Such products must be returned within fifteen (15) days of receipt. Whenever possible, returned products will be replaced with undamaged products. However, when an exchange is not feasible, the Company reserves the right to issue a credit for the amount of the exchanged products.
D. Stax Returns.
Products purchased as part of a kit or package must be returned as the entire kit. If individual products purchased in Stax form are to be returned, they will be refunded according to the discounted Stax pricing.
E. Refund Alternatives.
The Company in its discretion may determine the acceptable refund alternatives for product returns, including but not limited to the following: Wurx Nutrition Company Credit, Product Credit, bank check, bank transfer, or credit card charge back. The actual form of refund will be based upon the original form of payment. Refunds will only be paid to the original payer.
F. Company’s Right to Recoup Unearned Bonuses.
Bonuses are paid to Sponsored Businesss based on the purchase of Company products by customers. When products are returned, the Company has the right to recoup the commissions that were paid based on the purchase of the products that were returned. The Company may recoup these commissions by requiring a Sponsored Business to pay the Company directly, or the Company may withhold the amount of the commission from future commission payments.
E. Return of Sales Aids.
Personalized Sales Aids are not returnable or refundable.
Section 4. Enrolling a Sponsored Business
A. Duty to Accept Contractual Responsibilities.
Before a Sponsored Business may act, the Sponsored Business must meet all requirements and accept all responsibilities described in the Contract.
B. Training and Support.
In order to aid in building a successful company, Wurx Nutrition will assume training and support obligations where possible.
C. Open Local Markets.
A Sponsored Business is entitled to sell or promote only in Open Local Markets.
Section 5. Commissions Plan
See Sponsored Business commission plan attachment 1
Section 6. Product Claims
A. Food and Drug Administration Standards.
Many products fall under nutritional and cosmetic classifications set forth by the U.S. Food and Drug Administration (FDA). The FDA regulates and oversees the production and sale of nutritional and cosmetic products to assure their safety and proper representation to the public. The FDA also has labeling and packaging standards with which the Company must comply.
B. Federal Trade Commission Standards.
Similarly, advertising is regulated by the Federal Trade Commission (FTC). The FTC Act requires that before making any representation about the health benefits, performance, efficacy, safety or ingredients of any Product that at the time of making such representations, the company, or spokesperson for the Company, must possess and rely upon competent and reliable scientific evidence that substantiates the representation being made. “Competent and reliable scientific evidence” means tests, analyses, research and/or studies using procedures generally accepted by experts in the relevant scientific field that yield accurate and reliable results and that have been conducted and evaluated in an objective manner by persons qualified to do so.
C. Permissible Claims.
A Sponsored Business may represent Wurx Nutrition products as represented on WWW.WURXNUTRITION.COM OR WWW.MYTEAMWURX.COM
D. FDA Disclaimer.
When discussing the benefits of Wurx Nutrition products, a Sponsored Business should refer to the FDA statement on Wurx Nutrition product labels: “These statements have not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure, or prevent disease.”
E. No Curative or Drug Claims.
A Sponsored Business may not make any medical claim for any product nor specifically prescribe any given product as suitable for any specific ailment, as that type of representation implies the products are drugs rather than nutritional supplements or cosmetics. Under no circumstance should these products be likened to drug products prescribed for the treatment of specific ailments. While the Company makes every effort to achieve full compliance with complicated and periodically amended FDA regulations, no Sponsored Business should state or infer that any product is approved by the FDA. The FDA does not require or grant specific approval for individual nutritional or cosmetic products.
When promoting Wurx Nutrition products, a Sponsored Business must disclose the fact that the Sponsored Business is a Wurx Nutrition Sponsored Business who receives commissions from the Company.
Section 7. Payment of Taxes
A. Income Tax. A Sponsored Business accepts sole responsibility for all self-employment and income taxes due to income earned as a Wurx Nutrition Sponsored Business. At the end of each calendar year,Wurx Nutrition will provide a statement of earnings [1099 form] for tax purposes to each Sponsored Business with an annual income at or over the minimum required to be reported to the United States Internal Revenue Service. Note: Any contest, incentive or prize items may be included in the 1099 form. To the extent required by law, the Company will send notification of the Sponsored Business’s commission payments to relevant tax authorities.
Section 8. Product Liability Claims
A. Company Defense of Claims. Subject to the limitations set forth in this provision, Wurx Nutrition shall defend Sponsored Businesss from claims made by third-party customers alleging injury from use of a product, or injury due to a defective product. Sponsored Businesss must promptly notify the Company in writing of any such claim, no later than ten (10) days from the date of the third-party claimant’s letter alleging injury. Failure to so notify the Company shall alleviate any obligation of the Company respecting such claim. Sponsored Businesss must allow the Company to assume the sole and absolute discretion respecting the defense of the claim, and use and choice of counsel as a condition to the Company’s obligation to defend them.
B. Exceptions to Indemnification of Sponsored Business. The Company shall have no obligation to indemnify a Sponsored Business if: 1. the Sponsored Business has not complied with the Contract respecting obligations and limitations covering the distribution and/or sale of the products; 2.the Sponsored Business has repackaged, altered or misused the product, made claims or given instructions or recommendations respecting the use, safety, efficacy, benefits or results, which do not comply with the approved literature of the Company; or, 3. The Sponsored Business settles or attempts to settle a claim without the Company’s written approval.
Section 9. Authorized Use of Sponsored Business’s Information
A. Sponsored Business Lists. Lists of Sponsored Businesss and all contacts generated there from ("Lists") are the confidential property of Wurx Nutrition. The Company has derived, compiled, configured, and currently maintains the Lists through the expenditure of considerable time, effort, and monetary resources. The Lists in their present and future forms constitute commercially advantageous assets and trade secrets of the Company. The right to disclose Lists and other Sponsored Business information maintained by the Company is expressly reserved by the Company and may be denied at the Company's discretion.
B. Confidentiality of Lists. Vendors, suppliers, or other persons obtaining access to Lists of Sponsored Businesss through their production or distribution of that material contractually agree to the confidentiality and proprietary nature of those mailing lists and that any use of those lists or contacts generated therefrom, except for the sole purpose of furthering the Company's business, is expressly forbidden. They also agree that the information is the property of the Company and any materials offered to the Sponsored Businesss which make any reference to the Company or its programs may be done so only with the prior written consent of the Company for each separate offer.
C. Limitations on Use. These Lists are provided for the exclusive and limited use of the Recipient to facilitate the training, support, and servicing of the Recipient's Team for furtherance of the Company-related business only. Each Recipient agrees that each use, within its intended scope, constitutes a separate exclusive license agreement between the Recipient and the Company.
D. Lists Belong to Company. These Lists remain, at all times, the exclusive property of the Company, which may, at any time and in the Company's sole discretion, reclaim and take possession of the Lists. Accordingly, each Sponsored Business agrees:
1. To hold confidential and not disclose any Lists or portion thereof to any third Person, including, but not limited to, existing Sponsored Businesss, competitors, and the general public;
2. To limit use of the Lists to there intended scope of furthering the Sponsored Business’s Wurx Nutrition-related business. The Lists may not be used to identify and solicit Wurx Nutrition Sponsored Businesss to other commercial opportunities and activities;
3. That any use or disclosure of the Lists outside of those authorized herein, or for the benefit of any third Person, constitutes misuse, misappropriation, and a violation of the Recipient's license agreement, which causes irreparable harm to the Company;
4. That, upon any violation under this section, the Recipient stipulates to injunctive relief as an appropriate remedy enjoining that use under applicable national or local laws, and will immediately retrieve and return to the Company all Lists previously provided to the Recipient upon the Company's request, and that the obligations under this section will survive the termination of the Recipient's Contract.
E. Company Remedies for Violation. The Company reserves the right to pursue all appropriate remedies under applicable national or local laws to protect its rights to the above-stated proprietary and trade secret information covered by the Lists. Any failure to pursue any applicable remedies will not constitute a waiver of those rights.
Section 10. Limitation of Liability
Except as provided in this Policy Manual, Wurx Nutrition makes no express or implied representations or warranties with respect to the Wurx Nutrition products to be provided hereunder or their condition, merchantability, fitness for any particular purpose or use by Sponsored Businesss. The Company shall not be liable for any:
A. Special, indirect, incidental, punitive, or consequential damages, including loss of profits, arising from or related to the operation or use of the products including, without limitation, damages arising from loss of revenue or profits, failure to realize savings or other benefits, damage to equipment, and claims against the Sponsored Business by any third person, even if the Company has been advised of the possibility of such damages;
B. Damages (regardless of their nature) for any delay or failure by the Company to perform its obligations under the Contract due to any cause beyond its reasonable control; or
C. Claims made a subject of legal proceeding against the Company more than One year after the alleged violation. Notwithstanding any other provision of the Contract, the Company's total liabilities hereunder shall not be greater than the amounts actually received by the Company pursuant to the terms of the Contract.
Section 11. Disciplinary Actions
A. Rights Conditioned Upon Performance. A Sponsored Business’s rights under the contract are conditioned upon and subject to the Sponsored Business's continued performance in accordance with the terms of the Contract. Upon failure by a Sponsored Business to perform his or her obligations as set forth in the Contract, the Sponsored Business's rights cease. The Company may excuse a Sponsored Business 's non-performance in whole or in part without waiving its rights and remedies under the Contract.
B. Possible Disciplinary Actions. If Sponsored Businesss violate any of the terms and conditions of the Contract or engage in any illegal, fraudulent, deceptive, or unethical business conduct, Wurx Nutrition may, in its sole discretion, invoke any disciplinary action that it deems appropriate. The potential disciplinary actions are:
1. Issue an oral and/or written warning or admonition to the Sponsored Business;
2. Closely monitor the conduct of the Sponsored Business over a specified period of time to ensure performance of the contractual duties;
3. Require the Sponsored Business to provide the Company with additional assurances that the Sponsored Business’s performance will be in compliance with the Contract. Further assurances may include requiring the Sponsored Business to take certain actions in an effort to mitigate or correct non-performance;
4. Deny or suspend privileges that are awarded from time to time by the Company or cease performing the Company's obligations under the Contract, including but not limited to, awards, recognition at corporate events or in corporate literature, participation in Company-sponsored events, placement of product orders, access to Company information and business organization, or the Sponsored Business’s participation in other Company programs or opportunities;
5. Discontinue or limit payments from all or any part of the sales of the Sponsored Business or the Sponsored Business’s organization;
6. Impose a fine, which may be imposed immediately or withheld from future commission payments;
7. Reassign all or part of the Sponsored Business’s Organization;
8. Adjust the Sponsored Business status in the company;
9. Suspend the Sponsored Business, which may result in termination or reinstatement with conditions or restrictions;
10. Terminate the business of the Sponsored Business;
11. Seek injunctive relief or other remedies available by law.
C. Investigation. The following procedure applies when Wurx Nutrition investigates an alleged violation of the Contract:
1. The Company will either provide the Sponsored Business with a verbal notice and/or send a written notice of the alleged breach of Contract. Each Sponsored Business agrees that the relationship between a Sponsored Business and the Company is entirely contractual. Accordingly, the Company will neither honor nor respect any claim by a Sponsored Business that the relationship is or has been quasi-contractual, has arisen by implication from any continuing practice or course of action, has been verbally authorized by an employee of the Company in contradiction of the terms of the Contract, or is otherwise implied in fact.
2. In a case when written notice is sent, the Company will give the Sponsored Business ten business days from the date of dispatch of a notification letter during which the Sponsored Business may present all information relating to the incident for review by the Company. The Company reserves the right to prohibit activity (e.g. placing orders, participating in events, modifying Sponsored Business information, receiving sales commissions, etc.) by the Sponsored Business in question from the time the notice is sent until a final Company decision is rendered.
3. On the basis of any information obtained from collateral sources and from the Company's investigation of the statements and facts taken together with information submitted to the Company during the response period, the Company will make a final decision regarding the appropriate remedy, which may include the termination of the Contract with the Sponsored Business. The Company will promptly notify the Sponsored Business of its decision. Any remedies will be effective as of the date on which notice of the Company's decision is dispatched.
4. Additional information outlining an appeal of the decision by the Company and the Company's Dispute Resolution policy will be provided upon request from the Company.
D. Request for Termination. A Sponsored Business may request to terminate the Contract at any time and for any reason by sending a written notice of intent to terminate, notifying the Company of the intent to terminate, or by simply discontinuing promotion of Wurx Nutrition products. A Person whose business is terminated may not sign up again as a Sponsored Business for six months from the date of last activity. Activity includes but is not limited to purchasing product, earning commissions, or participating in a Wurx Nutrition event. All obligations regarding confidentiality of information and the Sponsored Business organization survive termination of the Contract.
E. Inactivity. The Company may deem a Sponsored Business inactive if the Sponsored Business is not actively posting at least 1 social media post and 1 social media video per month with proper hash tags on any of the Sponsored Businesss Social Media accounts for 6 consecutive months. Once deemed inactive you loose all benefits associated with benefits.
F. Time Limitation on Claims Made. The Company will not review any violation of the terms and conditions of the Contract not brought to the Company's attention within two years of the initiation of the alleged violation. Failure to report a violation within the two-year period will result in the Company not pursuing the allegations in order to prevent stale claims from disrupting the ongoing business activities of Sponsored Businesss. All reports of violations must be in writing and sent to the attention of Wurx Nutrition.
G. Action Against a Sponsored Business. The Company may take action against a Sponsored Business if the Company determines, in its sole discretion, that the Sponsored Business's conduct is detrimental, disruptive, or damaging to the well-being or reputation of the Company.
Section 12. Contract Changes
A. Amendments on Thirty Days’ Notice. Wurx Nutrition expressly reserves the right to make any amendments or modifications to the Contract and/or the Commission Plan, upon thirty days prior written notice in Company publications, by separate mailing, or through online publication on the Company website(s). Sponsored Businesss agree that thirty days after publication of that notice, any amendment or modification becomes effective and is automatically incorporated into the Contract and/or Commission Plan, between the Company and its Sponsored Businesss, as an effective and binding provision. By continuing to act as a Sponsored Business, or engaging in any organizational activity, including purchasing products, signing up other Sponsored Businesss, or earning commissions, after the amendments or modifications have become effective, a Sponsored Business acknowledges acceptance of the new Contract and/or Commission Plan terms.
B. Sponsored Business Bound by Amendments. Sponsored Business will be bound by any amendments to this Policy Manual, the Contract, and/or the Sales Commission Plan upon notification of amendments through any of Wurx Nutrition official channels of communication including the Company’s website, emails, newsletters or other publications or mail to the Sponsored Business. Ordering products or accepting commission payments confirms a Sponsored Business’s ongoing acceptance of the Contract and any amendments, and the agreement to be bound by the Contract.
Section 13. Miscellaneous
A. Waiver. The waiver by Wurx Nutrition of any Sponsored Business's breach of any provision of the Contract must be in writing and will not be construed as a waiver of any subsequent or additional breach. The failure by the Company to exercise any right or prerogative under the Contract will not operate as a waiver of that right or prerogative.
B. Integrated Contract.
1. The Contract is the final expression of the understanding and agreement between the Company and a Sponsored Business concerning all matters touched upon in the Contract and supersedes all prior and contemporaneous agreements of understanding (both oral and written) between the parties. The Contract invalidates all prior notes, memoranda, demonstrations, discussions and descriptions relating to the subject matter of the Contract. The Contract may not be altered or amended except as provided therein. The existence of the Contract may not be contradicted by evidence of any alleged prior contemporaneous oral or written agreement.
2. Should any discrepancy exist between the terms of the Contract and verbal representations made to any Sponsored Business by any employee, the express written terms and requirements of the Contract will prevail.
C. Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to the Contract or the breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If they do not reach such solution within a period of 60 days, then, upon notice by either party to the other, all disputes, claims, questions, or differences shall be finally settled by arbitration and there shall be no right or authority for any dispute, claim, question or disagreement to be arbitrated on a class action basis. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. This agreement to arbitrate shall survive any termination or expiration of the Contract. Notwithstanding this dispute resolution provision, nothing herein shall prevent Wurx Nutrition from applying to and obtaining from any court having jurisdiction a writ of attachment, a temporary restraining order, preliminary injunction, permanent injunction, or other relief available to safeguard and protect Wurx Nutrition’s interest prior to, during, or following any mediation or other proceeding.
D. Litigation and Claims. In order to protect Wurx Nutrition, its assets, and its reputation from claims or disputes created by outside (non-Sponsored Business) third parties, the Company requires that if any Sponsored Business is charged with any infringement of any proprietary right of any out side third party (who is not a Sponsored Business) arising from any of the Company's proprietary assets, or if the Sponsored Business becomes the subject of any claim or suit related to that Sponsored Business’s business-related conduct or any other action that directly or indirectly negatively affects or puts the Company, its reputation, or any of its tangible or intangible assets at risk, the affected Sponsored Business shall immediately notify the Company. The Company may, at its own expense and upon reasonable notice, take whatever action it deems necessary (including, but not limited to, controlling any litigation or settlement discussion related there to) to protect itself, its reputation, and its tangible and intangible property. The Sponsored Business shall take no action related to that claim and suit, unless the Company consents, which consent shall not unreasonably be withheld.
E. Severance. Any provision of the Contract that is prohibited, judicially invalidated, or otherwise rendered unenforceable in any jurisdiction is ineffective only to the extent of the prohibition, invalidation, or unenforceability in that jurisdiction, and only within that jurisdiction. Any prohibited, judicially invalidated or unenforceable provision of the Contract will not invalidate or render unenforceable any other provision of the Contract, nor will that provision of the Contract be invalidated or rendered unenforceable in any other jurisdiction.
F. Force Majeure. The parties to the Contract shall not be responsible for any failure or delay in the performance of any obligations hereunder caused by acts of God, flood, fire, war or public enemy.
G. Headings. The headings in the Contract are for convenience of reference only and shall not limit or otherwise affect any of the terms or provisions of the Contract.
H. Notices. Unless otherwise provided in the Contract, any notice or other communications requested or permitted to be given under the Contract shall be in writing and shall be delivered personally, transmitted by facsimile or sent by first class, certified (or registered) or express mail, postage prepaid. Unless otherwise provided in the Contract, notices shall be deemed given when delivered personally, or if transmitted by facsimile, one day after the date of that facsimile, or if mailed, five days after the date of mailing to the address of the Company's headquarters or to the Sponsored Business’s address as provided on the Sponsored Business’s Form, unless notice of an address change has been received by the Company. The Company shall have the right, as an alternative method of notice under this Section, to use mailers, Company websites, or other normal channels of communications with Sponsored Businesss.
Attachment 1 – Commission Structure
An overview of the Commission Plan benefits to be made available to Sponsored Business is set forth below.
The summary below is conditioned in its entirety by the complete state of the Commission Plan, which available at WWW.MYTEAMWURX.COM.
1. COMMISSION QUALIFICATION
A - Post at least 1 picture and 1 video a month promoting Wurx Nutrition on any of your Social media platforms.
B - You must use @wurxnutrition #wurxnutrition #teamwurx
C - You must follow all Wurx Nutrition Social media accounts
2. SPONSORED BUSINESS COMMISSIONS STRUCTURE
Earn 20% from every purchase when customers order using your exclusive (TEAM WURX ID) this applies to new Customers only.
3. GENERAL TERMS AND CONDITIONS
- Sponsored Business will earn the commission every time a Customer reorders. After the initial order is placed for new Customer, that Customer will be linked to you for future commissions each time they purchase.
- Sales totals are based on total sales for the entire month.
- Sales totals will reset at the beginning of each month.
3.1. All commissions payable are net of returns.
3.2. In order to be eligible for any payments from the Company, Sponsored Business must have submitted the completed forms attached hereto (Payment Options and W-9), be in good standing at the time of the required payment, fulfilled all commission qualifications and be in compliance with the terms and conditions of the Agreement.